Why The Senate Judiciary Committee Was Right to Reject the Nomination of Priscilla Owen

Why the Senate Judiciary Committee made the right decision when they rejected the confirmation of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit.

Introduction

On September 5, 2002, the Senate Judiciary Committee rejected the confirmation of Priscilla Owen, a Texas Supreme Court Justice who had been nominated by President Bush to a seat on the United States Court of Appeals for the Fifth Circuit. Because of serious concerns about Justice Owen’s rulings and her record, her nomination had generated significant controversy and strong opposition. As 19 Texas civil rights, women’s rights, labor, consumer, and other organizations concluded, “Owen’s rulings often favor the interest of corporate Texas or government at the expense of ordinary Texans.” According to her own conservative colleagues on the Texas Supreme Court, including Alberto Gonzales and other justices appointed by then-Governor Bush, Owen had written or joined many dissents and other opinions that would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. Indeed, the Houston Chronicle had characterized Owen as “one of the most conservative” justices on “Texas’ Republican-dominated top court.” B. Roth, “Bush Submits 11 Names for Federal Bench: Texan Among Nominees,” Houston Chronicle (May 10, 2001) at A1.

At her confirmation hearing before the Judiciary Committee on July 23, 2002, Owen was questioned extensively by Committee members about her record and the serious concerns that her record had raised. Owen’s testimony at the hearing did not dispel, and in fact reinforced, those serious concerns, and the Committee thereafter rejected Owen’s confirmation.

Belying his frequent claim that he is a “uniter, not a divider,” President Bush has re-nominated Priscilla Owen to the Fifth Circuit. He has done this despite the very serious concerns about Owen that not only were documented from her judicial record but also confirmed by the opinions of some of his own appointees to the Texas Supreme Court. He has done this despite the strong opposition to Owen’s confirmation when she was first nominated, as well as her rejection by the Judiciary Committee. Indeed, to our knowledge, no federal judicial nominee who has been rejected in one Congress has ever been re-nominated by the President to the same position. In re-nominating Justice Owen, President Bush regrettably has ignored calls for him to “resist[] the temptation to seek the confirmation of judges the Judiciary Committee has already voted down,” as well as a letter from more than two dozen Texas groups urging that he not re-nominate Owen.

Nothing in the few months since the rejection of Justice Owen’s confirmation makes her any more suitable for a lifetime appointment to the federal Court of Appeals. All that has changed is the political composition of the Senate. The serious concerns that were raised before about Justice Owen’s record, heightened by her failure to dispel those concerns at her confirmation hearing, are as valid now as they were last year when the Judiciary Committee rejected her confirmation. Justice Owen’s judicial record, particularly her record of dissents, indicates that she is a judicial activist who would allow her right wing ideology to trump her responsibilities as a judge to follow the law, not make it.

As with any state Supreme Court, many Texas Supreme Court rulings are decided without dissent. Compared with her colleagues, however, Owen has dissented frequently, and in a right-wing activist direction on a conservative court. A review of the Court’s written opinions since Owen joined the Court in January 1995 through June 2002 (just prior to her July 2002 hearing), confirms the conclusion of Texans for Public Justice that Owen was, for that period, the second most frequent dissenter among the justices then serving on the Court. More important, the content of Owen’s dissents demonstrate that she is often out of touch with and significantly to the right of the majority of the Texas Supreme Court, including members of the Court appointed by then-Governor Bush, particularly in cases dealing with individual rights.

In fact, many of Owen’s dissents reveal a judicial philosophy directly contrary to President Bush’s asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents that Owen has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. In one case, Owen’s extreme views even led current White House Counsel Alberto Gonzales, then her colleague on the Texas Supreme Court, to charge her and her fellow dissenters with “an unconscionable act of judicial activism.” In another case, Gonzales’ majority opinion called a dissent by Owen an attempt to “judicially amend” a Texas statute. Her dissents demonstrate that, for Owen, ideology supercedes her responsibility as a judge to interpret the law; the criticism by her conservative colleagues of her efforts to make law from the bench further underscores this conclusion.

This report is drawn from the several reports that we issued last year in opposition to Owen’s confirmation. (Those reports, along with other resources regarding Justice Owen, are listed in the Appendix.) It focuses not only on the evidence from Justice Owen’s dissenting opinions that she is a right wing judicial activist, but also on the fact that this conclusion is established by the criticism often leveled at her by her conservative colleagues on the Court, particularly including Alberto Gonzales. Indeed, during the relatively brief time that they served together on the Court, Gonzales wrote or joined numerous opinions sharply criticizing opinions written or joined by Owen. This report also addresses Justice Owen’s failure at her confirmation hearing to dispel the serious concerns that had been raised about her record. For the reasons we discuss below, the Judiciary Committee made the correct decision in refusing to confirm Priscilla Owen to the Fifth Circuit. It should make the same decision again.